Intellectual property law is good. Excess in intellectual property law is not. This blog is about excess in Canadian and international copyright law, trademarks law and patent law. I practice IP law with Macera & Jarzyna, LLP in Ottawa, Canada. I've also been in government and academe. My views are purely personal and don't necessarily reflect those of my firm or any of its clients. Nothing on this blog should be taken as legal advice.

Eleven years ago, Access Copyright filed a
tariff seeking $15 for each full time equivalent employee from provincial and
territorial governments.

Its ship has now come
home. But spoiler
alert: the ending was not a happy one for Access Copyright. The ship was not
full of riches as expected. Instead, the Copyright Board has awarded only
11.56¢ - that's indeed ¢ and not $ and not a typo - per employee per
year or 0.0077, i.e. less than 1%, of what Access Copyright asked for. That is
for the period of 2005-2009. The rate goes up to 49.71¢ per employee for
2010-2014. But that is in turn only about 2% of the $24 per employee that
Access Copyright asked for.

The judicial review (in layperson’s language “appeal”)
process started off with an epochal procedural wrangle precipitated by AC’s
basic, inexplicable and fundamentally erroneous failure to serve complete Rule
306 affidavit material containing all the material that it that would need to
support its eventual memorandum of fact and law and its Rule 309 record. For
whatever reasons, AC did not include a very large number of the basic documents
that were used at the Copyright Board in its Rule 306 Affidavit that it
eventually purported to submit to the Court in its JR Rule 309 Record – after
the Respondents had duly served their material pursuant to Rule 307. Federal Court nerds may possibly find this
interesting. Almost certainly, nobody else will. But it is important – because
the rules are there for a purpose, and AC’s failure in this case was
potentially prejudicial to the Respondents.

The Respondent provinces and territories eventually reacted
with a motion, given their unsuccessful informal attempt to get AC back on
track in terms of the very clear Federal Courts Rules that had been ignored. Soon,
the parties were “knee deep” in motion commotion. Without going into excessive
detail, the Court was, in the result, apparently upset with both sides.

The Federal Court of Appeal basically
said “A Pox on Both Your Houses”. Frankly,
it’s a little surprising that AC somehow escaped without getting punished with
costs - since it was AC’s obvious error that started this entire encounter and
the Respondents were forced to respond with some kind of motion. Nonetheless, here’s
the bottom line of FCA’s
November 26, 2015 procedural ruling – from Justice Stratas, a noted expert on the art of advocacy:

[34] This
motion was about a minor, fixable mistake. As long as humans are involved in
litigating cases, no matter how much they try to prevent mistakes, mistakes
like this will sometimes happen, even by excellent counsel. Happily, most
procedural mistakes, like the one in this case, do not seriously implicate
clients’ rights. Mistakes of this sort should be nothing more than a minor
inconvenience during the drive to the ultimate destination—a judicial
determination on the merits that to all is proper and fair.

[35] But
here, the parties pulled over to the side of the road and stopped to fight,
forgetting the destination. After Access Copyright made its mistake, the
respondents wrote, pointing out the mistake. Despite the clarity of the
relevant rules, Access Copyright dug in its heels, maintaining its position
rather than reassessing it. In reaction to that, the respondents brought their
motion. But they too showed inflexibility, forcefully asserting their position
that Access Copyright should be prevented in the judicial review from using any
of the material it improperly included in its application record, whether or
not it was needed by the Court. In counter-reaction to that, Access Copyright
brought a counter-motion—one that in the end is unnecessary for this Court to
determine—proposing a lesser, more practical remedy. In that counter-motion, it
laudably advanced submissions showing an awareness of its mistake. But that
changed nothing: everyone has remained stuck on the side of the road.

[36] All have acted in good faith,
representing their clients’ interests vigorously, advocating their positions
with characteristic excellence. But here initial intransigence begat a motion
with remedial overreach, and remedial overreach begat a counter-motion.
Forgotten was the destination: this Court, as a practical problem-solver,
simply wants to determine the judicial review properly and fairly on the
merits, using a proper and fair evidentiary record. The focus should have been
on a fix, not a fight.

[37] An
order shall issue in accordance with these reasons. There shall be no order for
costs.

(highlight added)

Anyway, after an avoidable delay of several months,
the case somehow now lurches forward finally on the merits. No doubt, the Parties will be on
their best redemptive behaviour in terms of following the rules and focussing
on principles and not on procedure.

Here are the seven points that AC considers to be
“in issue”:

1.
What is the standard of review to be applied with respect to the challenges to
the Decision advanced by Access Copyright?

2.
Did the Board exceed its jurisdiction by removing the Deletion Provision, the
effect of which was removing the making of digital copies as a class of use
under the second tariff (2010-2014)?

3.
Was Access Copyright denied procedural fairness in the manner in which the
issue of its authority to license digital copying was first raised; and was
Access Copyright denied a meaningful opportunity to present its evidence
responsive to the issue and have such evidence fully and fairly considered by
the Board?

4.
Was Access Copyright denied procedural fairness in the manner in which the
Board excluded five copying events on the basis that they exceeded the copying
limits under the proposed tariffs, despite neither the Respondents nor the
Board ever having raised the issue prior, during or after the hearing?

5.
Was the Board correct in concluding that the issue of "what constitutes a
substantial part of a work" may be determined solely on a quantitative
assessment of the portions copied and without regard to whether a substantial
part of the author's skill and judgment has been copied?

6.
Was the Board correct in assessing fair dealing without regard to the
recognized evidential and persuasive burdens or misapplying those burdens given
the evidence, or absence of evidence, before it?

7.
Was the Board correct in determining that fair dealing is to be assessed
without considering the public interest in balancing the objectives of the Act;
that fairness is to be assessed in an atomistic and isolated view of the
fairness factors; and that the qualitative nature of the amount of the dealing and
the aggregate volume of copying are not to be considered in the fairness
assessment?

Here are the three factums in the judicial review case, which contain the Respondents’ responses: